Kishali Pinto Jayawardene
The ‘abnormal’ has become normal once again as Sri Lanka quietly and almost gently slipped back into a nation-wide State of Emergency, imposed by the Government as a reaction to recent attacks by Sinhalese mobs on Muslim shops and residences in Kandy.
Abnormal realities and perilous implications
The fragile nature of the democratic balance in this troubled country is best illustrated by how Sri Lankans naturally accepted the return of the emergency without demur. In a country where emergency law had virtually replaced the normal law of the land for decades citing ethnic and civil conflict, this reaction may be understandable. Few questioned the wisdom of this move and fewer still interrogated the exact content of the emergency regulations that were issued by President Maithripala Sirisena on Tuesday March 6th 2018.
Notwithstanding the fact that we are used to abnormal realities however, there are perilous implications to this turn of events which we need to be alive to. Harsh preemptive action to prevent further violence was warranted, particularly in the face of substantiated allegations that the police and counter-terror units were initially passive as marauding thugs struck terror into the hearts and minds of ordinary Muslim residents in affected areas.
But the continuation of a nation-wide State of Emergency has grave impact on the state of mind of the Sri Lankan citizenry which needs to be given serious thought to. Moderate and measured reactions on the part of the Government are called for, not dithering and uncertainty in the first instance that is succeeded by the other extreme of emergency over-reach. These are considerations that merit serious attention.
A shift to a discordant ‘counter-terror’ mentality
Concerns that have arisen thereto are aggravated by disturbing aspects of the emergency regulations that werebrought into force. It is certainly no credit to this ‘yahapalanaya’ Government that the shift from the old emergency mindset to an even more draconian ‘counter-terror’ mentality took place on its watch. Its proposed counter-terror law was a perfect illustration of that worrisome shift.
And it is still a question as to who drives this policy change which presents a stark contradiction to the Government’s loudly trumpeted commitment to democratic reforms. Indeed, if there are agent provocateurs whose aim is to stealthily undermine the stability of the Government, the one sure way is to move the country towards a national security regime which would then set the stage for even more national tumult. That must be avoided at all costs.
Where this discussion is concerned, the point to be emphasized here is that there are noticeable reflections of that same negative shift in these March regulations that must surely give rise to some disquiet. For example, it was the proposed counter-terror law which unacceptably transferred the onerous burden of issuing detention orders from ministerial responsibility (which was the case earlier) to the shoulders of police officers regardless of the dangers that this posed.
Police being conferred additional powers
Under the proposed law, as we must recall, a Deputy Inspector General of Police was conferred the power to issue Detention Orders valid up to six months on the basis of a subjective satisfaction that ‘there are reasonable grounds to believe that the suspect has committed or has been concerned in the committing of an offence contained in the Act.’ There was no objective test of necessity imposed to bring the required standard of due process of law into the actions of police officers in this regard. That was however a draft and was vehemently objected to at the time due to this and manifold other flaws that perturbed civil rights practitioners.
But what we have now is the making of emergency regulations which have already become part of the law subject to their possible withdrawal in the coming days. Under these regulations (clause 17(1)) the power to issue Detention Orders for the purpose of investigations is (similar to the proposed counter-terror law) given to a Deputy Inspector General of Police for a period not exceeding fourteen days. This is a distressing precedent which must be reversed.
Giving the power to issue detention orders to police officers is assuredly not a healthy development in any sense of the word. The potential that this poses to possible violations of civil rights and abuse in custody, both of which are well established features of our law enforcement systems must be stressed.
Replication of vague offences
Meanwhile the vagueness of the language used in the counter-terror draft in defining offences is also replicated elsewhere in these regulations. So, we have a prohibition imposed on any person, by word of mouth or by any other means whatsoever including through digital andor social media communicating or spreading any ‘rumour or false statement or any information or image or message which is likely to cause public alarm or public disorder, racial violence or incite the committingof any offence.’
While the last three categories of the prohibited actions under clause 15 of the March regulations are clearly defined and therefore permissible, the exact meaning of ‘causing public alarm’ is quite a different question altogether. Perfectly legitimate action encompassed within the confines of freedom of expression and information may well be caught up in the reach of ‘causing public alarm’ which is again, concerning. So too is a similar provision in clause 13 that prohibits the ‘causing of disaffection’ among persons who are public officers or engaged in the service of the Republic or engaged in the performance of essential services. These are clauses that are ripe for abuse.
Imposition of emergency only in exceptional situations
Taken as a whole, it is imperative that the Government gives its collective mind, with the due seriousness that the matter deserves, to the question as to whether a nationwide state of emergency should be continued. It must also take care that emergency regulations are brought into force only in the most exceptional of situations. If such a drastic step is warranted, it must confine itself to making regulations that are narrowly tailored to the situation in hand rather than broadly and vaguely phrased clauses that awaken the possibilities of abuse.
In the alternative, it would be a most profound irony for a Government coming to power on the platform of ‘good governance’ and the Rule of Law to, (wittingly or unwittingly as the case may be), bring about a situation where the awful weight of emergency law becomes even more burdensome than in the past when conflict raged.
Certainly it must not allow itself to be painted into that indisputably hazardous corner.